Opinion
No. 28,475.
Filed February 8, 1949.
1. CRIMINAL LAW — Appeal — Evidence — Sufficiency to Sustain Conviction of Rape. — Where the evidence most favorable to appellee disclosed that the act of rape was committed and the prosecuting witness did not consent to it, such evidence would be ample to support the verdict for conviction of rape. Burns' 1942 Replacement, § 10-4201. p. 44.
2. CRIMINAL LAW — Appeal — Evidence — Sufficiency to Sustain Conviction of Rape — Supreme Court Will Not Consider Contrary Evidence If Finding Is Sustained. — Upon appeal from a conviction of rape, the Supreme Court examines the evidence to ascertain whether or not there was evidence that rape was committed by force and against the will of the prosecuting witness, and where there was evidence from which the trial court could find that defendant was guilty, the Supreme Court should not consider evidence to the contrary, because different courts might reach different conclusions under the evidence, and the weight of the evidence, the credibility of witnesses and the ultimate guilt or innocence of defendant is a question for determination of the trial court. Burns' 1942 Replacement, § 10-4201. p. 44.
3. CRIMINAL LAW — Evidence — Sufficiency to Prove "Resistance" to Act of Rape — Reasonable "Resistance" Sufficient. — It is sufficient to constitute "resistance" as required to justify conviction of rape if a woman in good faith uses reasonable resistance, and she need not use all of the physical force of which she is capable. Burns' 1942 Replacement, § 10-4201. p. 45.
4. CRIMINAL LAW — Evidence — Weight and Sufficiency — Sufficiency to Prove "Resistance" to Act of Rape — Question of Fact for Jury. — The amount and extent of "resistance" necessary to show that the act of rape was committed against the prosecuting witness will present a question of fact for the jury. Burns' 1942 Replacement, § 10-4201. p. 45.
5. CRIMINAL LAW — Evidence — Weight and Sufficiency — Sufficiency of Testimony of Prosecuting Witness in Rape Trial — Corroborating Testimony Not Required. — In Indiana there is no statute requiring the complaining party, where the defendant is being prosecuted for rape, to be corroborated, and any evidence that is sufficient to convince the jury or court, if tried without a jury, beyond a reasonable doubt of defendant's guilt is sufficient. Burns' Replacement. § 10-4201. p. 45.
6. CRIMINAL LAW — Evidence — Province of Court and Jury — Questions of Law or Fact — Credibility of Witnesses. — Where defendant complained on appeal from conviction of rape that there was no proof that prosecuting witness made an outcry when alleged rape was committed, or that her clothes were soiled, and that he had taken prosecuting witness home, had prior relations, and had had one date with her, these were questions of fact for the jury going to the credibility and consent of the prosecuting witness. p. 46.
From the Marshall Circuit Court, Alvin F. Marsh, Judge.
Frank Thomas and Herman Gerald McCan were convicted of rape, and they appeal. Herman Gerald McCan dismissed his appeal.
Affirmed.
Byron E. Guse and Frank J. Lanigan, both of LaPorte, for appellants.
J. Emmett McManamon, Attorney General, Frank E. Coughlin, Deputy Attorney General, Merl M. Wall, Deputy Attorney General, for appellee.
The appellants were convicted of rape in the Marshall Circuit Court, under § 10-4201, Burns' 1942 Replacement.
The only errors assigned were:
1. The verdict of the jury is not sustained by sufficient evidence.
2. The verdict of the jury is contrary to law.
The appellant, Herman Gerald McCan, dismissed his appeal.
The sufficiency of the evidence to sustain the decision of the lower court is the only question presented.
The evidence most favorable to the appellee was substantially as follows:
The act was consummated and the prosecuting witness did not consent to it; she slapped and scratched the appellant's face; force was used by the appellant, and the prosecuting witness was "dumped" by appellant and McCan into the back seat of the automobile, while her hands and feet were held, where the act complained of took place; the appellant twisted and bent back the prosecuting witness' hands and arm; upon complaint by her that the appellant was hurting her neck, he stated "that he did not care if he broke my damned neck"; the appellant's ear was bitten by the prosecuting witness at some time during the struggle; she was forced into a reclining position; the prosecuting witness tried to get out of the car, but each time her hands were grabbed and held; the prosecuting witness was not let out at her home, and, when appellant said, "I'll be seeing you," the prosecuting witness said, "Not if I see you first"; at 6:20 a.m. of the morning that the prosecuting witness arrived home, she complained to her mother and father, and, later, in the presence of her father, to the police and the prosecuting attorney.
This evidence was ample to support the verdict. In 1, 2. Ritter v. State (1946), 224 Ind. 426, 427, 428, 67 N.E.2d 530, the court said:
"In this court we examine the evidence to ascertain whether or not there was evidence from which the court could determine that the act of which complaint was made was committed by force and against the will of the prosecuting witness. Under the evidence different courts might reach different conclusions. However, the weight of the evidence, the credibility of the witnesses and the ultimate guilt or innocence of the appellant, presented a question for the determination of the trial court. There was evidence from which the court could find that the appellant was guilty of the crime charged in the affidavit, therefore we should not consider evidence to the contrary. Fiedler v. State (1939), 215 Ind. 53, 18 N.E.2d 384." Hunt v. State (1939), 216 Ind. 171, 23 N.E.2d 681; McCoy v. State (1937), 211 Ind. 109, 4 N.E.2d 535; Dowty v. State (1932), 203 Ind. 228, 179 N.E. 720; Tosser v. State (1928), 200 Ind. 156, 162 N.E. 49; Shine v. State (1925), 196 Ind. 686, 688, 148 N.E. 411.
It is sufficient if a woman in good faith uses reasonable resistance. Anderson v. State (1886), 104 Ind. 467, 4 N.E. 63. The authorities do not hold that she must use all of 3. the physical force of which she is capable. State v. Ritter, supra; Rahke v. State (1907), 168 Ind. 615, 81 N.E. 584.
The amount and extent of resistance necessary to show that the act was committed against the prosecuting witness will present a question of fact for the jury. Anderson v. State, supra; 4. Rahke v. State, supra; Ritter v. State, supra.
The appellant raises some question as to the necessity for corroborating the testimony of the prosecuting witness. It was held in Abshire v. State (1927), 199 Ind. 474, 477, 158 5. N.E. 227, 228, that:
"In this state there is no statute requiring the complaining party, where the defendant is being prosecuted for the crime of rape, to be corroborated, and any evidence that is sufficient to convince the jury or court, if tried without a jury, beyond a reasonable doubt of defendant's guilt is sufficient. Chesterfield v. State (1923), 194 Ind. 282, 141 N.E. 632; Cosilito v. State (1926), 197 Ind. 419, 151 N.E. 129."
Appellant, in his propositions and points, lays stress upon the fact that there was no proof that the prosecuting witness made an outcry, or that her clothes were soiled, and of her failure 6. to make immediate complaint, and that the appellant had taken the prosecuting witness home, and of prior relations, which consisted only of the appellant taking the prosecuting witness home one night, and having one date with her. These are questions of fact for the jury, going to the credibility and consent of the prosecuting witness.
We find no error for which the judgment should be reversed.
Judgment affirmed.
NOTE. — Reported in 83 N.E.2d 788.